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FOI Advisory Council Opinion AO-02-14

AO-02-14

January 29, 2014

Lucy Phillips, Esq.
Washington County Attorney
Abingdon, Virginia

The staff of the Freedom of Information Advisory Council is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your electronic mail of December 20, 2013.

Dear Ms. Phillips:

You have asked seven questions regarding electronic mail records (email) that have gone through the County computer network and were recorded on the County computer system back-up database. Each question will be addressed below in the same numerical order presented in your inquiry.

First, you asked whether a recording of email transmissions held in the County's back-up database makes the County the custodian of all records contained in the database regardless of whether such records are public records. The Virginia Freedom of Information Act (FOIA) does not define the term custodian, but does use the term in referring to who receives and responds to records requests under FOIA, and who exercises discretion regarding exempt records.1 Observing the lack of a statutory definition and turning to common usage of the term custodian, this office has previously described a custodian as one in charge of something.2 The same opinion observed that that definition of custodian makes sense when considered in conjunction with the statutory definition of public records in § 2.2-3701, which includes records prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business. A later opinion also found guidance in the Virginia Public Records Act (VPRA), which provides a similar definition of the term custodian in § 42.1-77 to mean the public official in charge of an office having public records. In the context of your question, and following prior opinions, then, the term custodian for FOIA purposes is dependent on preparing, owning, or possessing public records. FOIA does not apply to records that are not public records, and therefore the County would not be considered the custodian of such records for FOIA purposes. However, the County would be the custodian of records in its back-up database that it has prepared, owns, or possesses in the transaction of the County's public business.

Second, you asked whether the fact that a record is in the County's back-up database gives the County authority to release records that are not public records that do not involve the transaction of the County's public business. As FOIA only applies to public records that are in the transaction of public business, it neither mandates nor prohibits disclosure of records that are not public records in the transaction of public business. Therefore the answer to this question is no, FOIA does not grant authority to release records that are not public records; FOIA is silent on the issue.

Third, you asked whether a request to review all emails for a specific member of the Board of Supervisors for a specified period of time is reasonably specific for FOIA purposes. You stated that the request asked for "all email transmissions, 'including exempt and personal email correspondence" for approximately three years. Staff estimated that this time period would include approximately 15,000 emails. As you know, subsection B of § 2.2-3704 requires that a request for public records shall identify the requested records with reasonable specificity. This office has previously opined on this topic that common sense would dictate that a request needs to be specific enough to enable a public body to begin to process the request and, if clarification is required, to ask relevant questions to understand the scope of the request.3 In this instance, the request you described would appear to be reasonably specific because you know what records the requester seeks, but it also appears to be voluminous and as result, likely to be very time-consuming. As previously opined by this office, the volume of a records request may be the cause of increased charges for production, and may be grounds for a public body to seek additional time to respond. However, volume alone is not grounds for denial of a request.4 Therefore while the voluminous nature of this request may cause increased charges and take additional time, it does appear to be reasonably specific in identifying the records sought by the requester. Additionally, you would not be required to produce exempt records or purely personal records that are not in the transaction of public business, despite the request to do so.

Fourth, you asked whether the County may charge the requester for the time necessary to review the emails and remove those that are not public records. As you know, subsection F of § 2.2-3704 provides that a public body may make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records. Searching a database of emails for those that are public records responsive to the request is an allowed charge. Such a search would necessarily include reviewing each record and then separating out those records that are not responsive to the request. Such non-responsive records would include both records that are not public records at all and public records that may be in the database but do not fall within the parameters of the request. Thus the real question is not whether you may charge for removing non-responsive emails, but whether you may charge for searching for responsive emails, and the answer is that you may. As previously opined by this office, the allowed charges would include charges such as the hourly rate of pay for the staff that researched and responded to the request and the cost of copies. This provision would not allow for charges such as the fringe benefits of the employees responding to the request, because there is no nexus to the production of the requested records.5 Therefore the County may charge the actual amount incurred in searching for responsive public records based on the hourly rate of the employee who performed the search, not including fringe benefits.

As background to your fifth question, you indicated that the Board of Supervisors appointed one Supervisor to serve on other non-County boards and authorities. You ask whether emails in regard to these other boards and authorities are public records for the purposes of the County's response to a FOIA request. You also pointed out that some of those emails about non-County business would be exempt, but that the County Administrator who would review them might not be aware which documents would be exempt. As previously opined by this office, electronic mail messages between members of a public body that are not related to the transaction of public business are not public records under FOIA, and therefore are not subject to its mandatory disclosure requirements. The fact that electronic mail messages go through a government agency’s electronic mail database does not, by itself, make them public records. Additionally, it is the subject of those electronic mail messages that determines their status as public records. Under Virginia FOIA, a public body is responsible for providing the records it uses in the transaction of its own public business.6 Therefore even though the County may be in possession of emails or other records of other bodies, those records would not be public records for which the County is the custodian because they are not records in the transaction of the County's public business. You indicated that the Board of Supervisors made the appointments to the non-County boards and authorities. Records of appointments made by the Board of Supervisors would be County business, and those records would be public records for which the County is custodian. However, records concerning the transaction of public business by the non-County boards and authorities would not be records of the County's public business, and therefore would not be the County's public records. Therefore emails concerning the non-County boards and authorities would be the County's public records when the subject is appointment by the Board of Supervisors, but would not be such when the subject is the substantive business of the non-County boards and authorities. If the non-County boards and authorities mentioned are themselves public bodies, then under FOIA, they are the custodians of their own records and would be responsible to respond to requests for them. As a matter of records management practices, it may be advisable for individuals who serve on multiple public bodies to separately store and organize their records as to each body, and to ensure that whoever serves as the records custodian for each body has access to the appropriate records.

Sixth, you ask whether the rights established by FOIA for an elected member of a governing body are greater than those of other citizens of the Commonwealth. The policy expressed in subsection B of § 2.2-3700 is to ensure the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees, and free entry to meetings of public bodies wherein the business of the people is being conducted. This policy is given effect in the context of records requests in subsection A of § 2.2-3704: Except as otherwise specifically provided by law, all public records shall be open to inspection and copying by any citizens of the Commonwealth during the regular office hours of the custodian of such records. Access to such records shall not be denied to citizens of the Commonwealth, representatives of newspapers and magazines with circulation in the Commonwealth, and representatives of radio and television stations broadcasting in or into the Commonwealth. This office has previously considered FOIA requests by government employees and opined as follows:

The law does not distinguish between a citizen of the Commonwealth and government employees. Individuals who choose to work in public service for state and local government do make some sacrifices. Government employees often must accept a lower salary or rate of pay than people performing equivalent jobs in the private sector. Government employees also give up some privacy in choosing to work in the public sector. For example, subsection B of § 2.2-3705 specifically states that a government employee's salary or rate of pay and reimbursements are a matter of public record. However, in making these sacrifices to work in the public sector, a government employee does not give up rights as a citizen. When an employee makes a FOIA request, he is acting in his capacity as a citizen and is entitled to the same rights and protections as other citizens making the same request. An employee's FOIA request should not be responded to any differently than other requests, and should be handled in the same routine manner.

Just as with government employees, nothing in FOIA establishes additional, separate, or different rights for elected officials.7

Seventh, you asked whether individual members of an elected governing body are the custodians of their individual email transmissions sent and received through the County network, or whether the County is the custodian. As stated above, the term custodian is not defined but generally refers to the person who prepares, owns, or possesses the public records at issue, or who has responsibility to retain them under VPRA. In the sense of constructive or legal ownership, the County is the custodian of all public records concerning the transaction of the County's public business, regardless of who has actual possession.8 However, on a practical level, the County is a legal entity that only acts through its officials and employees, and it takes an actual person to respond to a request. FOIA does not require a public body to designate any particular individual as the person to respond to FOIA requests, nor does FOIA delve into questions of the internal organization or structure of public bodies. In practice, it has been my experience that different localities and agencies vary in how they assign duties to respond to FOIA requests. Some designate one person as a FOIA officer, some handle requests through their central administrative or attorneys' offices, some designate separate FOIA contacts for each department, some do not have any particular person designated to handle FOIA requests, etc. Different public bodies also engage in different records management practices and have different policies regarding email. For example, some public bodies issue email accounts to all of their officials, those officials use those accounts, and access to those email accounts is retained by the public body at all times. In other cases some officials may use other email accounts to which only they have direct access, such as personal or private business accounts. FOIA is silent regarding these practices, but keeping in mind that the definition of public records would include all such emails in the transaction of public business, regardless of the account used, we have advised that all emails in the transaction of public business should either be on government accounts or be copied to staff. Doing so facilitates archiving email records and responding to future requests for such records. I do not know how the County handles these issues, but it would be an internal decision by the County whether to have Supervisors act as custodians of their own email or to have the County Administrator (or some other employee or designee) handle such requests. Depending on the circumstances, it may be necessary to have the Supervisors involved access their own email accounts, particularly if they use personal or private business accounts in the transaction of public business. For FOIA purposes in this instance, all that matters is that the response given the requester is in compliance with FOIA, not who processes the request or sends the response.

Thank you for contacting this office. I hope that I have been of assistance.